These Guardicore Software Terms and Conditions (these “Terms”) apply to, and govern (as applicable):
(A) the Sales Order (in the form of a Purchase Order, Order Form, Commitment Letter or Proposal) or Guardicore sales related documents (such as a quote and License Certificate) to which these Terms are attached, hyperlinked or otherwise incorporated by reference, or
(B) the online order form you submitted on the Guardicore website
(in each case, the “Order“).
These Terms are hereby incorporated by reference into, and made a part of, such Order. These Terms and the Order are collectively referred to as this “Agreement“. To the extent of any conflict or inconsistency between a provision in these Terms and a provision in the Order, the former shall prevail (unless the Order specifically states otherwise).
The Agreement constitutes a binding agreement between Guardicore Ltd. (or the other Guardicore entity specified in the Order, if applicable) (“Guardicore“) and the customer specified in the Order (“Customer“), and governs, inter alia, Customer’s access to, and use of, the Software and receipt of Services (each as defined below). Guardicore and Customer may be collectively referred to herein as the “Parties“, and each individually as a “Party“.
This Agreement commences on the date the Order is executed (or in the case of an online Order, submitted by Customer), or upon Customer’s access to the Software if earlier (“Effective Date“).
An individual entering into this Agreement on behalf of the Customer, represents that he/she has the right, authority and capacity to act on behalf of the Customer and to bind the Customer to this Agreement.
For the avoidance of doubt, these Terms shall not apply to Customer if Customer has both purchased a license to the Software through, and signed an end user license agreement with, a Guardicore-authorized reseller, distributor, or similar channel partner of the Software (a “Channel Partner“), so long as such end user license agreement complies substantially with these Terms. In such cases, Customer is granted its license to the Software by and through the Channel Partner, and not directly by Guardicore. If Customer has only purchased its license to the Software through such a Channel Partner, but has not signed an end user license agreement with the Channel Partner, then these Terms shall apply (in particular, please see Section 4 (Purchases via Channel Partners)).
1. DEFINITIONS. The following capitalized terms have the meanings set forth below:
“Affiliate” means, with respect to either Party, any person, organization or entity controlling, controlled by or under common control with, such Party. For purposes of this definition only, “control” of another person, organization or entity will mean the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of such person, organization or entity, whether through the ownership of voting securities, by contract or otherwise. Without limiting the foregoing, “control” will be deemed to exist when a person, organization or entity (i) owns more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other organization or entity, or (ii) possesses, directly or indirectly the power to elect or appoint more than fifty percent (50%) of the members of the governing body of the other organization or entity.
“Agent” means the Software’s agent component that is installed on virtual machines, physical servers, endpoints, workstations, containers, or other equivalent or similar machines or technologies of the Customer, in each case per the Software’s specification.
“Cloud Hosted Service” means the provision of any module or component of the Software (such as the Management Server) as a hosted service under Guardicore’s (or its Affiliate’s) public cloud account.
“Customer Data” means any data or information submitted or uploaded to, or transmitted through, the Software, or otherwise provided or made available to Guardicore, by or on behalf of Customer.
“Documentation” means the Software’s operational guides or similar documentation, as specified in the Order. Unless the context requires otherwise, references herein to Software shall be deemed to include its Documentation.
“Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, whether registered or unregistered, and whether vested, contingent, or future) in and to inventions, discoveries, works of authorship, designs, software, technical information, databases, know-how, mask works, methods, technology, and other intellectual property, and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
“IR Services” means Incident Response services.
“Professional Services” means installation, deployment, configuration, training, customization, integration, or other professional services.
“Services” means, as the case may be, Deployment Services, Support and Maintenance Services, Professional Services, IR Services, and any other services specified in the Order. For the avoidance of doubt, Services excludes Cloud Hosted Services.
“Management Server” means the Software’s management and dashboard component.
“License Certificate” means the form issued by Guardicore confirming Customer’s purchase of the applicable Licenses and which sets out, among others, the License Term.
“License Scope” means any Software usage or consumption limitations and parameters (for example, as to the licensed Software modules, volume of Management Server licenses, volume of Agent licenses, installation environment, features and functionalities, etc.) specified in the Order.
“License Term” means the Software license period specified in the License Certificate.
“Software” means the Guardicore software product specified in the Order.
“Support and Maintenance Services” means the Software support and maintenance services specified in the Order.
2.1. License Grant. Subject to the terms and conditions of this Agreement, Guardicore grants Customer a limited, worldwide (subject to Section Error! Reference source not found.13.10 (Export Compliance)), non-exclusive, non-transferable, non-sublicensable right and license, during the License Term, to do the following (collectively, the “License”):
(a) install the Agents in such volume as authorized by the Order;
(b) unless the Management Server is being purchased as a Cloud Hosted Service, install the Management Server in such volume as authorized by the Order; and
(c) internally access and use the Software for its end-use, in accordance with the Documentation.
For the avoidance of doubt: (i) the License is subject to the License Scope, and Customer shall not use any technical or other means within, or external to, the Software to exceed or circumvent the License Scope, and (ii) the Software is only licensed (and not sold) hereunder. Any rights not expressly granted herein are hereby reserved by Guardicore and its licensors, and, except for the License, Customer is granted no other right or license to the Software, whether by implied license, estoppel, exhaustion, operation of law, or otherwise. Customer shall be solely responsible for providing (and maintaining all necessary permits and licenses to use the Software for) all virtual machines, physical servers, workstations, endpoints, containers, and others assets and resources (such as, if applicable Customer’s cloud environment, as well as other third-party integrations) used in connection with the Software.
2.2. Customer Affiliates. Subject to (and without expanding) the License Scope, Customer may permit its Affiliates to exercise the License provided that: (a) Customer first informs Guardicore in writing of the identity of such Affiliates (and Guardicore may object to an Affiliate if Guardicore deemed such Affiliate a competitor); and (b) such Affiliates, in writing, acknowledge the terms and conditions of this Agreement, agree to comply with the License, and agree that Guardicore shall have no obligation or liability towards such Affiliates. Customer shall remain primarily responsible and liable for such Affiliates’ compliance with the License.
2.3. Delivery. Unless the Order specifies otherwise: (a) delivery of Software (except for any Cloud Hosted Service, if applicable) shall be by electronic download, and will be deemed delivered once made available for electronic download; (b) the Software shall be deemed accepted upon delivery; and (c) the License Term shall commence in accordance with the license certificate provided by Guardicore (the “License Certificate”).
2.4. Additional Purchases. In the event Customer wishes, and Guardicore agrees, to expand or add to the License Scope, and/or to provision of new or extended Services (in each case, an “Additional Purchase”), the following procedure shall apply:
(a) Guardicore (or, if applicable, the Channel Partner) shall issue to Customer a Quote or similar document (“Quote”) for the Additional Purchase; and
(b) Promptly following receipt of the Quote, Customer shall issue to Guardicore (or, if applicable, the Channel Partner) a purchase order for the Quote (which purchase order shall reference the Quote’s ID#).
Following issuance of the purchase order, such Additional Purchase shall be deemed incorporated into this Agreement by reference.
In respect of an Additional Purchase to the License Scope (as opposed to an Additional Purchase for Services): the Additional Purchase shall be coterminous in time with the License Term, and the initial License Fees for the Additional Purchase shall be pro-rated accordingly.
2.5. Cloud Hosted Services. In respect of Cloud Hosted Services, the hosting and all related processing will be provided by a third party cloud hosting provider selected by Guardicore (“Hosting Provider”), and accordingly the availability of the Cloud Hosted Service shall be in accordance with the Hosting Provider’s then-current uptime commitments. Guardicore shall notify Customer in writing if, and when, Guardicore engages a new Hosting Provider under this Agreement. In the event Guardicore decides to host the applicable Software module or component internally on Guardicore’s own servers under this Agreement, then Guardicore shall notify Customer and, at the written request of Customer, the Parties agree to negotiate in good faith an addendum to this Agreement to address Cloud Hosted Services uptime availability.
2.6. License Restrictions. As a condition to (and except as expressly permitted by) the License, Customer shall not do (or permit or encourage to be done) any of the following License restrictions (in whole or in part): (a) copy, “frame” or “mirror” the Software or Cloud Hosted Service; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Software or Cloud Hosted Service to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Software or Cloud Hosted Service; (d) modify, adapt, translate, or create a derivative work of the Software or Cloud Hosted Service; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Software or Cloud Hosted Service; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Software or Cloud Hosted Service; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Software or Cloud Hosted Service; (h) use the Software or Cloud Hosted Service to develop any service or product that is the same as (or substantially similar to), or otherwise competitive with, either of them; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Software or Cloud Hosted Service; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of servers/machines, Agents, or users that directly access or use the Software or Cloud Hosted Service (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’) in order to exceed or circumvent the License Scope; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Software or Cloud Hosted Service by or on behalf of Customer; (l) take any action that imposes or may impose (as determined in Guardicore’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Software or Cloud Hosted Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; or (m) use the Software or Cloud Hosted Service in connection with any internal performance testing or benchmark studies of which the results are designated or likely to be published in any form or media, or otherwise made available to the public, without Guardicore’s prior express written approval, or otherwise disclose or publish such results.
3.1. Deployment. If required by the Customer, the Software will be deployed in accordance with a mutually signed Deployment SOW that, if not attached to the Order, will be deemed attached to and incorporated into this Agreement by reference (the “Deployment Services” and “Deployment SOW”, respectively).
3.2. Other Professional Services. Any Professional Services mutually agreed to between the Parties shall be set out in sequential Professional Services Statements of Work to this Agreement (each, a “Professional Services SOW”). Professional Services shall be charged in accordance with such Professional Services SOW, as well as the applicable Quote to which it relates. Each Professional Services SOW shall be deemed incorporated into this Agreement by reference. To the extent of any conflict between the main body of this Agreement and a Professional Services SOW, the former shall prevail, unless and to the extent that the Professional Services SOW expressly states otherwise.
3.3. Support and Maintenance Services. Subject to Customer remaining current all payment of all License Fees hereunder, Customer will be entitled to receive Support and Maintenance Services.
3.4. General. Services will be performed by Guardicore, its Affiliates, and/or Channel Partners (if applicable), and are provided to Customer only. Guardicore may subcontract Services (in whole or in part) to a third party contractor, and Guardicore shall remain primarily responsible for such contractor’s performance of the Services. Unless expressly agreed otherwise in writing, Services shall be carried out remotely, and any physical attendance at Customer’s offices or other locations requested by Customer, if agreed to by Guardicore, shall be charged at Guardicore’s then-current rates, and Guardicore shall also be entitled to reimbursement for travel and lodging costs and expenses incurred.
4. PURCHASES VIA CHANNEL PARTNERS
If Customer is purchasing the License and/or any Services through a Channel Partner, then:
(a) the “Order” shall be the order issued by the Channel Partner to Guardicore (the “Guardicore-Channel Partner Order”), and the “License Scope” shall be determined with reference to the Guardicore-Channel Partner Order, and Guardicore shall have no responsibility or liability for any discrepancy between the License Scope under such Guardicore-Channel Partner Order on the one hand, and the order issued by Customer to Channel Partner (the “Customer-Channel Partner Order”) on the other hand;
(b) instead of paying Guardicore, Customer will pay the applicable amounts to the Channel Partner, as agreed between Customer and the Channel Partner;
(c) Guardicore may suspend or terminate the License and/or the Services if Guardicore does not receive payment from the Channel Partner, as a result of Customer not paying the corresponding amount to the Channel Partner;
(d) if Customer is entitled to a refund under the terms and conditions of this Agreement, then, unless Guardicore specifies otherwise, Guardicore will refund any applicable fees to the Channel Partner (and under no circumstances shall Guardicore be required to refund more than it received from the Channel Partner), and the Channel Partner alone will be responsible for refunding the appropriate amounts to Customer; and
(e) the Channel Partner is not authorized to make any promises or commitments on Guardicore’ behalf, and Guardicore is not bound by any obligations to Customer other than as set forth in this Agreement.
5.1. License Fees. Customer shall pay Guardicore the License fees specified in the Order (the “License Fees”).
5.2. Professional Services Fees. Customer shall pay Guardicore the Professional Services fees specified in the Order (the “Professional Services Fees”).
5.3. Other Fees. Customer shall pay Guardicore whatever other fees or charges are specified in the Order (“Other Fees”, and together with the License Fees and Professional Services Fees, the “Fees”).
5.4. General. Unless expressly stated otherwise in the Order: (a) all Fees are stated, and are to be paid, in US Dollar (USD); Euro (EUR) or British Pound Sterling (GBP), as applicable; (b) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; (c) all Fees are payable, and shall be invoiced, in advance, and shall be paid within thirty (30) days of receipt of invoice; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by applicable law.
5.5. Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Guardicore’s net income. Customer must provide a valid tax exemption certificate if claiming a tax exemption. In the event that Customer is required by any law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Guardicore shall be increased by the amount necessary so that Guardicore receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.
5.6. Records and Usage Audit. Customer shall at all times maintain records identifying the location of each copy of the Software, as well as the location, identity, and total number of virtual machines, physical servers, and workstations on which the Software is installed (collectively, “Installation Record”). Upon request by Guardicore, Customer shall provide Guardicore with a copy of the Installation Record. Guardicore shall, from time to time, be entitled to audit Customer’s deployment and use of the Software (a “Usage Audit”), and Customer shall facilitate such Usage Audit by providing Guardicore with all access reasonably requested by Guardicore (including without limitation Remote Access, as defined below). If a Usage Audit reveals a usage or consumption level above that permitted by the License Scope, the License Fees will be increased in accordance with the then-current pricing, and Guardicore will invoice (and Customer will pay) for the increased License Fees.
6.1. Guardicore Materials. Guardicore (and/or its licensors, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to:
(a) the Software and all related intellectual property (such as content appearing therein);
(b) its Confidential Information;
(c) any feedback, suggestions, or ideas for or about the Software (collectively, “Feedback”);
(d) any non-Customer-identifying information, data, reporting, suggestions, analyses, and/or intelligence relating to the operation, support, and/or Customer’s use, of the Software (such as metadata, aggregated data, analytics, security findings or discoveries, etc.) (collectively, “Output”); and
(e) any and all improvements, derivative works, and/or modifications of/to any of the foregoing, regardless of inventorship or authorship.
Customer shall make, and hereby irrevocably makes, all assignments and/or waivers necessary or reasonably requested by Guardicore to ensure and/or provide Guardicore (and/or its designee(s)) the ownership rights set forth in this paragraph. Guardicore shall be entitled, from time to time, to modify and replace the features and functionalities (but not material functionalities, unless it improves the material functionality) and user interface of the Software.
6.2. Customer Data. As between the Parties, Customer is, and shall be, the sole and exclusive owner of all Customer Data.
(A) Customer shall not provide or make available to Guardicore, its Affiliates, or the Hosting Provider (or otherwise expose them to) any Customer Data that includes or links to Sensitive Data. “Sensitive Data” means any (i) categories of data enumerated in Article 9(1) of the European Union’s General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor law; (ii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (iii) Nonpublic Personal Information (NPI) (as defined by the Gramm-Leach-Bliley Act and its implementing rules and regulations) or Personal Health Information (PHI) data (as defined by the Health Insurance Portability and Accountability Act and its implementing rules and regulations); or (iv) any data similar to the foregoing that is protected under foreign or domestic laws.
(B) Customer represents and warrants that: (a) no processing of Customer Data under this Agreement (whether by Guardicore, its Affiliates, or the Hosting Provider) will violate any law, proprietary right, or privacy right; and (b) it has obtained and will maintain all required consents and licenses, and will maintain all ongoing legal bases (if applicable), necessary to provide, make available, and otherwise expose Customer Data to Guardicore, its Affiliates, and the Hosting Provider.
(C) Customer grants Guardicore and its Affiliates a worldwide, non-exclusive, non-assignable (except as provided herein), non-sublicensable (except to Hosting Providers, if applicable), non-transferable right and license, during the Term, to access, use, and process any Customer Data provided or made available hereunder, including without limitation for the provision of the Software and/or Services.
Each Party and/or its Affiliates (the “Recipient”) may have access to certain non-public or proprietary information and materials of the other Party and/or its Affiliates (the “Discloser”), whether in tangible or intangible form (“Confidential Information”). Confidential Information includes, without limitation: (a) any information related to Discloser’s business, such as cost data, pricing methodologies, price lists, business plans and opportunities, marketing plans, financial and accounting information, forecasts and valuations, market share data, sales volumes, discounts, and budgets; (b) information relating to actual or potential customers, suppliers, products and services; and (c) technical data, computer programs and software code (including firmware and source code), ideas, inventions, algorithms, know-how, analyses, specifications, processes, techniques, formulas, designs and drawings, architectures, and other technology and intellectual property. Customer acknowledges that the Software embodies Confidential Information of Guardicore. Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, is in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. The Recipient shall not disclose or make available the Discloser’s Confidential Information to any third party (including without limitation by way of publishing), except to its employees, contractors, advisers, agents and investors, subject to substantially similar written confidentiality undertakings). Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature (but in no event less than a reasonable level), to protect the Discloser’s Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser’s Confidential Information solely for the purposes expressly permitted under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any law, regulation, or governmental or judicial order, the Recipient will (a) promptly notify Discloser in writing of such law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to the extent required by such law, regulation or order (as the case may be). Upon termination of this Agreement, or otherwise upon written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information (or if embodied electronically, permanently erase it), and certify compliance writing.
Notwithstanding anything in this Agreement to the contrary, the pricing and payment terms under the Order are confidential to Guardicore, and Customer shall not disclose such Confidential Information to any third party (except to its accountants, lawyers, and potential investors), without Guardicore’s prior express written consent.
8. PERFORMANCE WARRANTY
Guardicore warrants to the Customer that, during the Warranty Period (defined below), the Software shall operate substantially in accordance with the material functions and features set out in the applicable Documentation (the “Warranty”). In the event of any Warranty breach, and provided Customer has notified Guardicore via email (at firstname.lastname@example.org) of the breach promptly after discovery thereof, Guardicore shall first determine whether the defect can be resolved via the Support and Maintenance Services, and Customer shall fully cooperate with Guardicore in such efforts. If Guardicore determines that the Support and Maintenance Services cannot resolve the defect, Guardicore shall (at its sole option, and at no additional charge) use commercially reasonable efforts to provide a workaround, bug fix or patch, and Customer shall fully cooperate with Guardicore in such efforts. For the avoidance of doubt, any workaround, bug fix, or patch shall not re-commence the Warranty Period, and are warranted for the remainder of the Warranty Period as then in effect. In the event Guardicore is unable to provide a workaround, bug fix or patch within thirty (30) business days of receipt of the Warranty breach notice, then, as Guardicore’s sole obligation and liability, and Customer’s sole remedy, Customer shall be entitled (exercisable within fifteen (15) days following expiration of the 30-day period) to terminate this Agreement upon written notice to Guardicore and, following full uninstallation and permanent deletion of all copies of the Software by Customer (and verification thereof by Guardicore), receive a pro-rated refund of any prepaid License Fees hereunder based remaining period of the then-current License Term.
Unless the Order specifies otherwise, the “Warranty Period” shall be ninety (90) days commencing upon the earlier of the date of deployment of the Software or use of the Software in a production environment.
The Warranty shall not apply to (and Guardicore shall have no obligation or liability for) Software problems or defects arising from any of the following: (A) improper installation or use of the Software other than as specified in the applicable Documentation; (B) modification, configuration, or servicing of the Software by any person other than an authorized Guardicore representative; or (c) any fault in any Customer (or third party) equipment or programs used in conjunction with the Software.
EXCEPT FOR THE WARRANTY, THE SOFTWARE, SERVICES, OUTPUT, AS WELL AS ANY OTHER GOODS AND SERVICES PROVIDED OR MADE AVAILABLE BY GUARDICORE OR ITS AFFILIATES HEREUNDER (COLLECTIVELY, THE “GUARDICORE MATERIALS”) ARE PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL DEFECTS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED BY GUARDICORE AND ITS LICENSORS. GUARDICORE DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF GUARDICORE MATERIALS; (B) THAT CUSTOMER’S USE OF GUARDICORE MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; (C) REGARDING THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSION OF DATA VIA ANY NETWORKS OR THE CLOUD, OR ANY OTHER CELLULAR OR DATA CONNECTIVITY PROBLEMS; OR (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, REGULATIONS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS. GUARDICORE WILL NOT BE LIABLE OR OBLIGATED IN RESPECT OF DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR HOSTING PROVIDERS.
10. LIMITATION OF LIABILITY
10.1. EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION 77 (CONFIDENTIALITY), A BREACH OF THE LICENSE, AND/OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
(A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
(B) ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE;
(C) ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR
(D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
10.2. THE COMBINED AGGREGATE LIABILITY OF GUARDICORE AND ALL GUARDICORE AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO GUARDICORE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
10.3. THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
11.1. In the event a third party makes or institutes any claim, action, or proceeding against Customer alleging that Customer’s authorized access and use of the Software infringes such third party’s copyright or patent (an “Infringement Claim”), Guardicore shall:
(a) at its own expense, defend Customer against the Infringement Claim; and
(b) indemnify and hold harmless Customer for any amount finally awarded against or imposed upon Customer (or otherwise agreed in settlement) under the Infringement Claim (provided, however, that any insurance recoveries and/or indemnity or contribution amounts received by the Customer prior to receipt of indemnification by Guardicore shall reduce the indemnifiable amount to be paid by Guardicore by the amount of such recovery).
As a condition to the foregoing, Customer agrees: (A) to provide Guardicore with prompt written notice of the Infringement Claim; (B) to cede to Guardicore full control of the defense and settlement of the Infringement Claim (except that any non-monetary obligation imposed on Customer under a settlement shall require Customer’s prior written consent, not to be unreasonably withheld, conditioned or delayed); (C) to provide Guardicore with all information and assistance reasonably requested by Guardicore; and (D) not to admit any liability under (or otherwise compromise the defense of) the Infringement Claim. Customer may participate in the defense of the Infringement Claim at Customer’s own cost and expense.
11.2. Guardicore will have no liability under this Section (Indemnification) to the extent that the Infringement Claim is based on or results from: (i) a modification to the Software not made by Guardicore; (ii) the combination of the Software with any third party product or service; and/or (iii) any Customer instructions or specifications.
11.3. Should the Software (in whole or in part) become, or in Guardicore’s opinion be likely to become, the subject of an Infringement Claim, then Customer permits Guardicore, at Guardicore’s option and expense, to either: (x) obtain for Customer the right to continue using the Software (or part thereof); or (y) replace or modify the Software (or part thereof) so that it’s use hereunder becomes non-infringing; provided, however, that if (x) and (y) are not, in Guardicore’s opinion, commercially feasible, Guardicore may terminate this Agreement upon written notice to Customer, and, following full uninstallation and permanent deletion of all copies of the Software by Customer (and verification thereof by Guardicore), Customer shall be entitled to receive a pro-rated refund of any prepaid License Fees hereunder based remaining period of the then-current License Term.
11.4. This Section represents Guardicore’s sole obligation and liability, and Customer’s sole remedy, for any Infringement Claim. Guardicore’s combined aggregate liability under this Section (Indemnification) shall not exceed the lower of: (a) five (5) times the amounts actually paid by Customer to Guardicore under this Agreement; and (b) One Million US Dollars (US$ 1,000,000).
12. TERM AND TERMINATION
12.1. Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect for the duration of the License Term (as defined above).
12.2. Termination for Breach. Each Party may terminate this Agreement immediately upon written notice to the other Party if the other Party commits a material breach under this Agreement and, if curable, fails to cure that breach within sixty (60) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven (7) days).
12.3. Termination for Bankruptcy. Each Party may terminate this Agreement upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (a) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (b) the other Party makes a general assignment for the benefit of its creditors; (c) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (d) the other Party is liquidating, dissolving or ceasing normal business operations.
12.4. Effect of Termination; Survival. Upon termination of this Agreement for any reason: (a) the License shall automatically terminate; (b) Customer shall cease all access and use of the Software, and shall fully uninstall and permanently delete all copies of the Software (and Guardicore shall be entitled to verify same) and certify in a signed writing that it has done so; and (c) Customer shall pay any outstanding Fees and other charges that accrued as of termination, which become immediately due and payable, and, if necessary Guardicore shall issue a final invoice therefor. Sections 66 (Ownership) through 1313 (Miscellaneous) (but excluding 8 (Performance Warranty)) shall survive termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive or that ought by its nature to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
13.1. Entire Agreement and Amendments. This Agreement (and its Schedules) represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. In entering into this Agreement, neither Party is relying on any representation or statement not expressly specified in this Agreement. Without limiting the generality of the foregoing, this Agreement supersedes the following, each of which shall be deemed rejected, void and of no effect: (i) any shrink-wrap, click-wrap, or similar terms and conditions that accompany, or are included within, the Software, even if use of the Software requires an affirmative “acceptance” thereof, and (ii) any terms or conditions (whether printed, hyperlinked, or otherwise) in any purchase order or other standardized business forms, which purport to supersede, modify or supplement this Agreement.) This Agreement may only be modified or supplemented by a written instrument duly signed by each Party. The section and subsection headings used in this Agreement are for convenience of reading only. This Agreement may be executed in any number of counterparts (including digitally, electronically scanned and e- mailed PDF copies, and any similarly signed and electronically or digitally transmitted copies) each of which will be considered an original, but all of which together will constitute one and the same instrument.
13.2. Assignment. This Agreement may not be assigned by Customer, in whole or in part, without Guardicore’s prior express written consent. Guardicore may assign this Agreement, in whole or in part, without restriction or obligation. Furthermore, any Guardicore obligation hereunder may be performed (in whole or in part), and any Guardicore right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of Guardicore. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement will bind and benefit each Party and its respective successors and assigns.
13.3. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, USA without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. Any claim, dispute or controversy between the Parties will be subject to the exclusive jurisdiction and venue of the courts located in New York County, New York, USA and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction. EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY. EXCEPT TO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE.
13.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
13.5. Publicity. Guardicore may use Customer’s name and logo on Guardicore’s website and in its promotional materials to state that Customer is a customer of Guardicore.
13.6. Waiver and Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies.
13.7. Relationship. The relationship of the Parties is solely that of independent contractors, neither Party nor its employees are the servants, agents, or employees of the other, and no exclusivities arise out of this Agreement. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, partnership, association, or otherwise between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party and neither Party will create or attempt to create any obligation, express or implied, on behalf of the other Party.
13.8. Force Majeure. If any performance (excluding payment obligations) under this Agreement by either Party is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below), the Party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed thereby, provided that such Party so affected shall promptly notify the other Party of the occurrence of such event. If and when performance is resumed, all dates specified in this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such event of Force Majeure. For purposes of this Agreement, an event of “Force Majeure” shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, not the fault of either party; (c) invasion, war (declared or undeclared), terrorism, riot, or civil commotion; (d) an act of governmental or quasi-governmental authorities; (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected party. Notwithstanding the foregoing, Customer shall not be entitled to use, or rely on, this Section (Force Majeure) in connection with any Customer breach of the License and/or Guardicore’s Intellectual Property Rights. For the avoidance of doubt, any problems relating to hosting of the Software by a third party is beyond the reasonable control of Guardicore.
13.9. Notices. All notices or other communications provided for in connection with this Agreement shall be in writing and shall be given in person, by courier, by facsimile, email, or by registered or certified mail, postage prepaid, addressed as set forth in the Order. All notices and other communications delivered in person or by courier service shall be deemed to have been given as of one business day after sending thereof, those given by facsimile transmission with confirmation or receipt shall be deemed to have been given as of the date of transmission thereof (provided that such date is a business day in the country of receipt and if not, the next business day), and all notices and other communications sent by registered mail shall be deemed given three (3) days after posting. Notices sent by email shall be deemed received upon receipt of such email.
13.10. Export Compliance. Customer shall be solely responsible for obtaining all required authorizations and licenses from applicable government authorities under Export Control Laws, in connection with Customer’s use of the Software and its related documentation. Customer represents and warrants that: (a) it is not a resident of (or will use the Software or such documentation in) a country that the U.S. government has embargoed for use of the Software or such documentation, nor is an entity named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to Guardicore. Customer shall not transfer, export, re-export, import, re-import or divert the Software or such documentation in violation of any Export Control Laws (defined below), and shall not transfer, export, re-export, import, re-import or divert any the Software or such documentation to Lebanon, Syria, Iran, Iraq, Sudan, Yemen, Cuba, or North Korea (or other countries specifically designated in writing by Guardicore from time to time). In the event of a breach under this Section (Export Compliance), Customer agrees to indemnify and hold harmless Guardicore and all Guardicore Affiliates (and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Guardicore or a Guardicore Affiliate (or such persons) as a result of such breach. “Export Control Laws” means all applicable export and re-export control Laws applicable to Customer and/or Guardicore or its Affiliates (such as those of the State of Israel), as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
13.11. Expense. Except as expressly stated otherwise in this Agreement, each Party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents referred to in it).